KAUR and Anor v Minister for Immigration and Anor (No.2)

[2014] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2705

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal refusing applicants a Subclass 885 visa – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Schedule 4, PIC 4020

First Applicant: MANINDER KAUR

Second Applicant: GURSIMRAN SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 956 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 November 2014

Delivered at: Sydney

Delivered on: 12 November 2014

REPRESENTATION

First applicant appeared by telephone

Solicitors for the Respondents: Ms S. Burnett of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs. 

3. The first respondent’s costs are set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 956 of 2014

MANINDER KAUR

First Applicant

GURSIMRAN SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for judicial review of a decision of the second respondent (Tribunal), affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residents) (Class VB) Subclass 885 visa (885 visa).  The Tribunal affirmed the delegate’s decision on the ground the Tribunal was not satisfied the first applicant (applicant) met public interest criteria 4020 (PIC 4020) and was not satisfied the application of PIC 4020 to the applicant should be waived. 

2. PIC 4020 relevantly required that the Minister be satisfied there is no evidence that the applicant gave to the Minister a bogus document or information that is false or misleading in a material particular.  PIC 4020 can be waived if the Minister is satisfied that:

   (a)    compelling circumstances that affect the interests of Australia;  or

   (b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

3. The Tribunal was not satisfied PIC 4020 was satisfied, because the Tribunal was of the view that the applicant had submitted to the Minister two bogus documents.  The two documents were:

   a)an unsigned letter, dated 20 November 2010, purportedly from the British Council, indicating the applicant had sought a re-mark for each module of an IELTS test, and that the outcome of the re-mark was that the applicant had achieved 7.5 in each component. 

   b)an IELTS test report form, dated 2 December 2010, said to be for an IELTS test conducted on 20 November 2010, indicating the applicant scored 7.5 for each test component.

4. The basis on which the Tribunal was satisfied these documents were bogus was information provided to the Department of Immigration and Citizenship (as it was then known) by the International Development Program Education Pty Ltd Audit and Investigation Unit for IELTS.  That information was to the effect that the applicant did undertake an IELTS test on 20 November 2010, but that she scored 6 for listening, 6 for reading, 5.5 for writing and 5 for speaking. 

5. The applicant confirmed to the Tribunal that she had provided the documents to the Minister.  The Tribunal, however, did not accept the applicant’s evidence that she was not aware the documents were not genuine, finding that the applicant “has not been honest in her evidence to the Tribunal regarding her knowledge about the bogus documents she provided to the Department”.[1]

   [1] CB251, [29]

6. The applicant submitted to the Tribunal that PIC 4020 should be waived.  She claimed that:

   a)she cared for her sister’s five year old child, who has expressive dysphasia, and is learning from the applicant’s care; 

   b)the applicant’s sister would be unable to work if the applicant were unable to look after her nephew; 

   c)the applicant had developed a close bond with her nephew. 

7. The Tribunal found that none of these circumstances were compelling circumstances that affected the interests of Australia.  Nor was the Tribunal satisfied that these circumstances constituted compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

8. In that regard the Tribunal did not accept the applicant’s claim that the applicant’s sister would lose her job if the applicant would be unable to look after her nephew.  The Tribunal found the claim to be exaggerated and there was no documentary evidence from the applicant’s sister’s employer regarding her sister’s hours of employment or flexibility in her work arrangements.  The Tribunal also was not satisfied no alternative child care was available to the applicant’s sister:[2]

   The applicant has not provided evidence from her nephew’s school or local government/community that there are no alternative care options available for her nephew.

   [2] CB255, [51]

9. The Tribunal was not satisfied that the financial circumstances of the applicant’s sister and the applicant’s sister’s husband constituted “compassionate or compelling circumstances affecting their interests”.[3]  The Tribunal was not satisfied that the loss of the bond between the applicant and her nephew constituted a compassionate or compelling circumstance that justifies the grant of a visa.[4]

   [3] CB255, [52]

   [4] CB256, [55]

10. In the application filed in this Court, the applicant, who is not legally represented, raises three grounds of review.  The first ground is as follows: 

    Waiver points has not been considered.

11. There is no substance to this ground.  As the brief summary of the Tribunal’s findings that I have set out above indicates, the Tribunal did consider those claims.  Unfortunately for the applicant, the Tribunal decided those claims adversely to the applicant. 

12. The second ground of review is as follows:

    Childs health issue and bond with applicant has not been considered.

13. That ground, too, has no substance.  The Tribunal did deal with each of the two issues identified in the ground.  For example, in paragraph 47 of its reasons for decision the Tribunal noted that the applicant:

    [A]lso claims her nephew has expressive dysphasia (a speech problem) and she assists him in this regard.  She also submits her nephew is bonded to her.  She also claims her sister and brother-in-law rely on her to care for their son as, due to their financial commitments, they cannot afford to pay for the care.

14. And in paragraph 48 of its reasons, the Tribunal in terms deals with those matters, where it says:

    The Tribunal considers that none of these circumstances are compelling circumstances that affect the interests of Australia.

15. The Tribunal further deals with the question of the nephew’s bond to the applicant in paragraph 56 of the Tribunal’s reasons for decision, as follows:

    The applicant has also claimed that the requirements to meet PIC 4020(1) should be waived due to compassionate circumstances, because her nephew is bonded to the applicant.  The Tribunal accepts that the nephew may be bonded to the applicant, and that he and his parents may be saddened by a separation from the applicant.  However, it is not satisfied that the separation would have such a detrimental effect such that the nephew or his parents would suffer significantly.  The Tribunal is not satisfied that the effect on the nephew or his parents of a separation from the applicant, are compassionate or compelling circumstances affecting their interests, justifying the grant of the visa.

1. The third ground stated in the application is as follows:

   Sometimes child’s parents has to start work early hours, like 6:00 am, so has to leave home 5.30 am, so its hard to find a child care opening that early and some times parents has to finish work early but child’s school finish early, so applicant has to pick the boy from school and also its hard for parents to afford childcare (afterhours everyday) and there is cultural grounds also, so child need to spend time with family.

2. This ground asserts facts going to the working hours of the applicant’s sister and the applicant’s sister’s husband and the availability of child care during those hours.  What hours the applicant’s sister worked or the applicant’s sister’s husband worked and whether that disclosed compassionate ground for the granting of the visa was a matter for the Tribunal and the Tribunal alone to consider.  The ground does not disclose any jurisdictional error.

3. I do not understand the ground to claim that the applicant made to the Tribunal assertions to the effect stated in ground 3, and that the Tribunal did not consider those assertions.  If that is the claim, I would not accept it.  The Tribunal’s reasons record the applicant’s evidence that her sister used to work from 12 to 8 pm, but at the time of the hearing before the Tribunal the applicant’s sister worked from 8 am to 4 pm.  The Tribunal does not record the applicant making assertions to the Tribunal in terms of those asserted in ground 3.  And there is no basis on the material that I have read to suggest that she did so.

4. The three grounds that I have set out above and considered may indicate a misunderstanding by the applicant of the role of this Court.  The role of this Court is not to determine whether persons such as the applicant have valid grounds for obtaining a visa.  That was a matter for the Minister to determine in the first instance and, on review, for the Tribunal to consider.  The only role of this Court is to determine whether the manner in which the Tribunal determined the applicant’s claim was done according to law. 

5. None of the grounds on which the applicant relies discloses that the Tribunal did not undertake its tasks according to law.  In my opinion, there is nothing on the face of the decision itself to indicate that the Tribunal undertook its tasks otherwise than in accordance with law.  For these reasons, therefore, I propose to dismiss the application and order that the applicant pay the first’s respondents costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 20 November 2014